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HomeMy WebLinkAbout39. 20-264 JUNE 9, 2020 20-264 RESOLUTION (CARRIED 7-0 LOST LAID OVER WITHDRAWN ) PURPOSE: APPROVE AGREEMENT WITH THE TOWN OF OSHKOSH AND A PROPOSED SANITARY AND WATER SERVICE DISTRICT IN THE AREA CURRENTLY SERVED BY WATER THROUGH THE STATE OF WISCONSIN THROUGH THE WINNEBAGO MENTAL HEALTH INSTITUTE INITIATED BY: CITY ADMINISTRATION WHEREAS, an area located within the Town of Oshkosh has historically been associated with and served with water and sewer services through a private system operated by the Winnebago Mental Health Institute and the State of Wisconsin; and WHEREAS, the State of Wisconsin will no longer provide service to the Town residents through this system; and WHEREAS, the Town has applied for and has been granted funding for the construction/reconstruction of sanitary and water systems to connect with the current city facilities within this area; and WHEREAS, the Town anticipates creation of a new sanitary district to provide water and sanitary services within this area and has requested that the City enter into an agreement for the provision of water and sanitary services to the new district. NOW, THEREFORE, BE IT RESOLVED, by the Common Council of the City of Oshkosh that the attached Intergovernmental Agreement between the City of Oshkosh and the Town of Oshkosh for water and sanitary services to the Winnebago Area within the Town of Oshkosh, is hereby approved and the proper City officials are hereby authorized to execute and deliver the agreement in substantially the same form as attached hereto, any changes in the execution copy being deemed approved by their respective signatures, and said City officials are authorized and directed to take those steps necessary to implement the terms and conditions of the Agreement. TO: Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney James Rabe, Director of Public Works DATE: June 3, 2020 RE: Approve Agreement with the Town of Oshkosh and a Proposed Sanitary and Water Service District in the Area Currently Served by Water through the State of Wisconsin through the Winnebago Mental Health Institute While this issue dates back many years, the City has been involved in discussions with the Town of Oshkosh and the State of Wisconsin Department of Health Services since 2017 to reach a comprehensive resolution related to water and sewer service for a number of properties located in the area of the Winnebago Mental Health Institute. The attached agreement is the result of negotiations between the City and Town and anticipates the creation of a new water and sanitary district to provide water and sanitary service to this area. The water and sanitary district will obtain water and sanitary service through the agreement with the City. BACKGROUND The facility now known as the Winnebago Mental Health Institute (WMHI) dates back to 1873. It was originally served by a water tower on the property and private septic services. During the history of WMHI, possibly around the 1940's, homes were constructed along Butler Avenue to house persons who worked at the institute. These homes were served through the WMHI utilities. Overtime, these homes were sold to private individuals and are no longer owned by WMHI. WMHI was allowed to connect to the City's sanitary system in the mid -1940's and in 1994 the institutional property was annexed to the City of Oshkosh to obtain water service. At the time the institutional property was annexed, provisions were made for the homes in the town receiving service through the WMHI system to continue to receive water and sewer through WMHI's private system without requiring those properties to annex to the City. WMHI has upgraded the utility services to their facilities over the years but the private systems beyond the institution itself have continued to age and are in need of significant repair and/or replacement. City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 h1p://v .ci.oshkoshA.us City0fV Oshkosh WMHI in early 2017 notified the property owners of their intention to discontinue service and there were several meetings held to discuss the potential options for the future. The City had suggested three alternatives for the area: annexation, switch over to private wells and septic, or the creation of a town sanitary district for both sewer and water. The town and the residents determined to pursue the option of creating a Town District to provide both sanitary and water services. ANALYSIS Creation of a town water and sanitary district would solve a longstanding issue between the State, City and Town and provide assurance that pipes and connections are upgraded to modern standards better protecting the City and the proposed water and sanitary district facilities. The main provisions of the Agreement include: • The City will provide water and sanitary service to the existing Winnebago Area currently served through the State of Wisconsin system, but is under no obligation to provide utility services to any properties not located within the area defined by the Agreement • Provision of the utility services is subject to compliance with all applicable city water and wastewater related ordinances and rules and the Sanitary District is obligated to enforce those rules within the District • The District is responsible for replacing the existing water and wastewater systems; is responsible for all costs of connection; and is responsible for all future maintenance of District facilities • Billing for service will be based upon metered water and periodic wastewater metering to verify I/I and may include a meter charge, fixed charge, volume charge and such other fees and charges including I/I surcharges as may be determined by the Common Council consistent with PSC regulations and current practices for establishing water and sewer fees • The City will bill the District and the District is responsible for collection from its customers City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://w .cl.oshkosh.wi.us City e of Oshkosh • The City is currently working on renewals of all of its sanitary district agreements and anticipating proposing a simplified and more consistent agreement between all districts, this Agreement anticipates that the District and City will be governed by that new overall agreement when it is completed and agreed to FISCAL IMPACT The Agreement anticipates that the City will be fully compensated for its costs of providing utility services to the newly created District. RECOMMENDATION Staff recommends approval of the Agreement. Respectfully Submitted, i L A.Lorenson City Attori _ James Rabe Director of Public Works Approved: Mark A. Rohloff City Manager City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://w .cl.oshkosh.wi.us WINNEBAGO AREA INTERGOVERNMENTAL UTILITY SERVICE AGREEMENT Winnebago Area Intergovernmental Utility Service Agreement ("Agreement") dated this day of , 2020, by and between the Town of Oshkosh, a Wisconsin town ("Town") and the City of Oshkosh, a Wisconsin municipality ("City"). Recitals A. This Agreement is authorized by the intergovernmental cooperation provisions of Wis. Stats. § 66.0301 and, to that extent, it will be liberally construed to accomplish its intended purposes. B. Attached as Exhibit A is both a legal description and an aerial photo of the Winnebago area in the Town of Oshkosh that is the subject of this Agreement. The contents of Exhibit A are incorporated by reference and, together, will be referred to as the "Winnebago Area." C. The Winnebago Area consists of single-family homes, a post office, various apartment buildings, and a commercial business, all consisting of approximately 103 residents. The Winnebago Area is currently served by wastewater and water utilities provided by the State of Wisconsin Department of Health Services, which owns a State institution generally described as the Winnebago Mental Health Institute ("WMHI"). Currently both the water supply and the wastewater discharge flow through WMHI to and from the City. D. WMHI has notified the Town that it wishes to end its long-standing program of providing water and wastewater utility services to the Winnebago Area. The City is willing to continue providing water and wastewater utility services to the Winnebago Area, subject to the terms and conditions of this Agreement. Notwithstanding anything to the contrary, the City expressly reserves all rights regarding its legislative discretion to provide or deny the provision of utility services to other areas within the Town or to any other third party, whether it may be a public sector entity or otherwise. E. The Town and City recognize that the Town and City, together with other Towns and Sanitary Districts outside of the City but served by the City, are currently in the process of reviewing and negotiating an updated Sanitary District Master Agreement. In addition, the Town and City recognize that there may be issues that will need to be defined, addressed or addressed in a different manner than contemplated at the time of this Agreement and the Town and City agree to act in good faith to address any issues not contemplated, not adequately addressed within the Agreement or in need of amendment or revision. F. Subsequent to the execution of this Agreement, the Town and the City anticipate that the Town will create a new town sanitary district encompassing the Winnebago Area 1 (henceforth "Sanitary District"). The parties agree that, without further consideration, the rights privileges and obligations of this Agreement shall automatically be assigned to this newly -created Sanitary District. NOW, THEREFORE, in consideration of the above recitals, which are contractual, the Town and City agree, as follows: 1. Utility Services. The City will provide water and wastewater utility services (combined "Utility Services") through the District to the Winnebago Area. Notwithstanding anything to the contrary, the City has no obligation to provide Utility Services to any properties not currently located within the Winnebago Area, as defined in this agreement, and all rights are reserved by the City to decline the provision of Utility Services to any properties outside the Winnebago Area regardless of the future boundaries of the Sanitary District. Furthermore, the provision of the Utility Services described in this Agreement is subject to compliance with all applicable City water and wastewater related ordinances, resolutions, and administrative rules; and the Sanitary District Commission shall adopt all such ordinances, resolutions and administrative rules necessary to fulfill this obligation. The City agrees to provide potable water meeting Primary Drinking Water Standards to the District to a connection point identified under Section 2 of this Agreement or as may be agreed upon by the City's Director of Public Works and the parties' technical engineering representatives. The City and the District shall each be responsible to test the water within their own systems and the City shall bear no responsibility for water quality beyond the point of connection. The City agrees to provide wastewater utility services to the District at a connection point identified under Section 2 of this Agreement or as may be agreed upon by the City's Director of Public Works and the parties' technical engineering representatives. The District shall be responsible for all costs of connection, including engineering fees, construction fees, and the costs of construction materials, but excluding SCADA equipment, water meters and water metering equipment which shall be installed and paid for by the City and which shall remain under City ownership. All construction plans shall be submitted to the City and WDNR for approval prior to the commencement of any construction. It is intended that the Utility Services described in this Agreement be limited to those existing properties (whether vacant or developed) within the Winnebago Area, at the date this Agreement is entered into. See attached Exhibit A to this Agreement. In addition to the preceding, the Town/Sanitary District shall require the 12 -unit apartment building on Sherman Rd., which is currently served by a private well, to obtain potable water from the City through the District. It is the intention of the parties that the sale, lease, inheritance or other similar conveyance of individual private property rights shall not affect this Agreement except that no additional properties may be added to the District and no substantial change of use for an individual service (such as from residential to commercial or industrial) shall be permitted without specific written approval by PA City. There shall be no resale, wholesale sale of or other extension of Utility Services by the District or any customer thereof. Notwithstanding anything to the contrary herein, the Town shall not rezone any parcel(s) within the Winnebago Area without obtaining the City's prior written consent, which consent may not be unreasonably withheld, delayed, or conditioned. 2. Scope of Project. Attached as Exhibit B, and incorporated by reference, are maps depicting the location of the existing water distribution system and the existing wastewater collection system within the Winnebago Area. The parties acknowledge that these systems need replacement. Notwithstanding anything to the contrary, the Sanitary District is solely responsible for the costs of replacing the existing water distribution system and the existing wastewater collection system. Attached as Exhibit C, and incorporated by reference, is a description of the project encompassing the construction of a proposed new water distribution system replacement and a proposed wastewater collection system replacement (together "Replacement Utilities"). Upon installation, the Replacement Utilities will remain the property of the Sanitary District, which is responsible for their operation, maintenance, repair, and replacement. Notwithstanding anything to the contrary, the Replacement Utilities shall not include storm sewers. Furthermore, cross -connections allowing ground water, storm water or any other prohibited substance to enter the Replacement Utilities are strictly prohibited. The District will include as part of the construction project, the replacement of each private building sewer line from property line to its connection point inside the building to visually confirm clearwater cross -connections have been eliminated. The -District will be required to verify the elimination of private property cross -connections prior to completion of the construction project. In addition, a backflow prevention device (full-sized check valve) shall be installed, at the City's cost, with the City water meter at the connection point of the water distribution systems to prevent any backflow from the District's water distribution system into the City's water distribution system. 3. Flow Measurement. The City agrees that the potable water service will be metered as the primary billing method to the District for water and sewer service. In addition, in order to monitor and potentially surcharge for clear water inflow & infiltration (UI), the District shall install a Palmer Bowlus flume, or equivalent wastewater flow metering device approved by the City, in a new meter manhole at the southeast corner of Sherman Rd./South Drive intersection. This new manhole will be just upstream of the City's existing manhole at that intersection. The District/City will develop an infiltration/inflow surcharge methodology acceptable to both parties using field data collected in the first 12 months after the utilities replacement project is completed. The Town/District will record continuous flow data from the flow meter in the meter manhole and utilize this information in developing the surcharge methodology. Base level UI values will be determined by comparing metered potable water volumes to metered wastewater flows in dry weather conditions at minimal usage times such as midnight to 5:00 a.m. It is 3 anticipated that the dry weather minimal usage time volumes will be insignificant. Similar measurements will be made during wet weather events using storm events of an agreed to magnitude (for example: F or greater rain event). The difference between base level flow values and wet weather flow values will be surcharged to the District at an agreed to fee per 1000 gallons. Details of the UI surcharge methodology will be resolved during the initial year of operation of the upgraded system. Modifications of the surcharge methodology can be made annually if requested by either party. The District will conduct an annual metering check of the sewer system flow over a two month period during spring wet weather conditions to verify UI values are remaining in check. Changes in the amount of UI volume measured may result in a recalculation of the UI surcharge rate and include back billing for increased flows at the City's option. The District shall provide and maintain a water meter structure with adequate power and heat for the installation of a City owned water meter, with check valve, to be installed to record water flows from City to the District. The structure shall not require confined space entry but shall provide adequate space for safe maintenance, repair, and replacement of the meter. The water meter and check valve shall be installed by the City in the structure and shall remain the property of the City. The City shall be responsible for all maintenance of the meter and check valve. The District shall provide necessary easements and access to the City for reading the meter and maintenance purposed at all reasonable times. The meter shall be tested and maintained by the City as required by PSC regulations and copies of all test results and shall be available to the District. 4. Billing. The District shall pay to the City water charges as determined by the PSC which may include a meter charge, fixed charge, volume charge or such other fees and charges as may be determined by the PSC. The City will make application to the PSC and will request a rate be established for the sale of water to the District. It is the intent of this Agreement that the City shall be fully compensated for its cost of providing Utility Services to the Winnebago service area. Preparation of the application will include a cost of service analysis performed by outside consultants experienced in developing rates and fees for water utilities in accordance with industry practices. The City shall provide the District with a copy of the application within 10 business days after the submission of the application. The District shall apply to the PSC for determination of the rates it must charge the District's customers and abide by all regulations of the PSC, DNR and other authorities governing public water and wastewater systems. The District shall pay to the City wastewater charges as determined by the Common Council, which may include a meter charge, fixed charge, volume charge or such other fees and charges, including a base line UI surcharge and a wet weather UI surcharge; as may be determined by the Common Council in a manner consistent with other Town Sanitary Districts and the master wastewater services agreement. It is the intent of this Agreement that the City shall be fully compensated for the provision of Utility Services to the Winnebago service area. Determination of wastewater rates will include a cost of service analysis performed by outside consultants experienced in developing rates and fees for wastewater utilities in accordance with industry practices. The City shall provide the District with a copy of the analysis at least 15 calendar days :l prior to consideration by the Common Council to allow the District to review and comment upon the proposed rates. The City reserves its legislative discretion to modify its own rate structure in the future. Rates will be established through a regular review of the cost of service analysis performed by outside consultants experienced in developing rates and fees for water and wastewater utilities in accordance with industry practices. New rates shall automatically be included within this Agreement upon approval of the PSC in the case of water, approval of the Council in the case of wastewater; and notification to the District. The City shall issue a single combined bill to the Sanitary District for the Utility Services being provided pursuant to this Agreement. This combined bill will delineate water and sewer charges and UI surcharges. The Sanitary District is solely responsible for the payment of City invoices and, further, the Sanitary District bears the risk of collection from individual Sanitary District customers. The District shall pay the City directly for all utility services consistent with the City's current policy for customer billing. All invoices shall be timely paid and shall be subject to penalty and bear interest in the same manner as other utility customers consistent with the City's current policies. The District shall be responsible to directly invoice third party recipients for utility services. Failure of or delay by any third party recipient to pay the District shall not relieve the District of its obligation to pay City for Utility Services. The District and Town (to the extent authorized by law) shall take all reasonable and necessary action to cause any overdue balances to be paid to the City. 5. Term. The term of this Agreement is indefinite. When a new master agreement among the City and the other Oshkosh -area sanitary districts, including the sanitary district that will encompass the Winnebago area is entered into, that Agreement shall replace the terms of this Agreement as to Sanitary Service and the term of this Agreement as to water service shall be automatically amended to be coextensive with the new master sanitary district agreement. 6. Conditions Precedent. The performance obligations described in this Agreement are subject to the following conditions precedent: (a) the Town or the Sanitary District obtaining 100% funding from the State of Wisconsin or the United States for the direct and indirect fees, including engineering fees, to construct the Replacement Utilities; (b) the creation of the Sanitary District by the Town Board of the Town of Oshkosh; (c) the receipt of all necessary State of Wisconsin and City engineering and regulatory approvals; and (d) the absence of any litigation challenging this Agreement or the formation of the Sanitary District. The Town Board retains, in its sole discretion, all rights to determine the existence or applicability of the above conditions precedent. 61 The performance obligations described in this Agreement are also subject to the creation of the District and completion of construction of the Replacement Utilities within 36 months of the date of this Agreement. The provision of the Services provided by the City described in this Agreement is subject to the District's compliance with all applicable City wastewater -related ordinances and administrative rules pertaining to protection of the City's Collection System and the City's Wastewater Treatment Facility. The District's Board of Commissioners shall adopt and enforce regulations regarding the use of the District's Collection System that includes the same language as the following sections of Chapter 24 of the City of Oshkosh Municipal Code, except replacing the word "City" or words "City of Oshkosh" with the name of the Sanitary District, except in the case where the sentence refers to the City's Wastewater Treatment Plant (Facility) or the City's Industrial Wastewater Discharge Handbook; replacing the terms "Control Authority" and "Authority" with the term "District's Board of Commissioners;" and, replacing the terms "Director of Public Works" and "Water Utilities Bureau Manager" with the term "District's Chairman": Sections 24-4, 24-5, 24- 6, 24-6.1 through 24-6.4, 24-6.6 and 24-6.7. Should these sections of the Municipal Code be amended or additional regulations be adopted, the City will provide the amended or additional provisions to the District and the District shall have 60 calendar days from receipt to adopt and begin enforcement of the amended or additional required provisions. 7. Dispute Resolution. If a dispute related to this Agreement arises, the parties shall attempt to resolve the dispute through direct discussions and negotiations. If the dispute cannot be resolved by the parties directly, the parties will jointly seek the assistance of a qualified mediator. If they cannot agree on the qualified mediator within 10 days of the request for a mediator, a qualified mediator will be appointed by the Chairperson of the Alternative Dispute Resolution Committee of the State Bar of Wisconsin, or if the Chairperson fails to appoint a mediator, by the American Arbitration Association. The mediation session shall take place within 30 days of the appointment of the mediator. The parties agree that the mediator lacks the authority to impose a settlement upon them but they will nevertheless attempt to reach a satisfactory resolution of their dispute. The mediation session(s) are private and the parties shall maintain the confidentiality of the mediation. The expenses of the mediatory shall be borne equally by the parties. If the dispute is unresolved after mediation, either party may request the other party to agree to arbitration or may commence an action in the Wisconsin Circuit Court. The parties shall continue to perform according to the terms and conditions of this Agreement during the pendency of any litigation or other dispute resolution proceeding. This Agreement is intended to provide each party with the right and standing to seek any available legal or equitable remedy necessary to enforce the terms of the Agreement or to provide relief from or damages for breach of the Agreement. In any legal action brought to interpret or enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and all related costs of the mediation, arbitration and/or litigation. If the parties agree to submit the dispute to binding arbitration by an arbitrator of recognized qualifications and the parties cannot agree on an arbitrator, they will request a five -person panel 11 list from the Wisconsin Department of Administration -Municipal Boundary Review. If unavailable from this agency, the parties shall request a five -person panel list from the Wisconsin Public Service Commission. Each party will have two strikes from the five -person panel list. The parties may agree to an alternative method for the selection of a single arbitrator. The arbitrator is not bound by Rules of Evidence or the substantive, internal laws of Wisconsin. The arbitration award is final and binding and shall be enforceable at law. The arbitration provisions of Chapter 788 of the Wisconsin Statutes apply to the arbitration proceedings, unless the parties agree on different arbitration procedures. The City and the Town or, if the relevant party is the Sanitary District, will equally divide the fees of the arbitrator, as well as the costs of stenographers, if any. The parties are responsible for their own attorneys' fees, expert fees and costs. Notwithstanding any language or provision in this Agreement, nothing in this section shall be deemed a limitation on the City to enforce any violation of its ordinances, resolutions, or administrative rules relating to water and wastewater services and to seek all available penalties and remedies including injunctive relief. 8. Miscellaneous Provisions. The parties agree to the following additional provisions: (a) Existing Sanitary Sewer Agreements. The Town and the City have previously entered into various agreements relating to wastewater services. The parties intend this Agreement and the preexisting agreements to complement and supplement each other until this Agreement and the preexisting agreements are replaced by a new master wastewater services agreement. However, if there is an irreconcilable conflict between this Agreement and any preexisting sanitary sewer (wastewater services) agreement, the terms of this Agreement shall prevail. (b) Amendments. This Agreement may be amended, from time to time, only by the mutual consent of the parties, which for this purpose includes the future Sanitary District. Any party wishing to propose an amendment shall provide written notice to the other party. The notice will identify the proposed amendment and the reasons supporting such amendment. Within 30 days after receipt of the notice, the parties shall meet to discuss and, if necessary, negotiate the proposed amendment. (c) Notices. All notices required under this Agreement must be served, either personally or by certified mail, upon the parties' respective municipal clerks. Any action taken by a party in violation of these relevant notice requirements is voidable unless, under the particular facts, the public interest outweighs strict enforcement of the notice requirement. 7 (d) Enforceability. The parties have entered into this Agreement under the authority of Wis. Stats. § 66.0301. Its enforceability will not be affected by statutory amendments, changes in the form of City, Town or Sanitary District government, or changes in elected officials. The parties agree that this Agreement is to be construed as binding on their respective successors, agents, and employees. (e) Complete Agreement. This Agreement and its exhibits constitute the complete agreement of the parties with respect to the matters covered herein. No agreements, promises, or representations made during or in connection with the negotiations for the approval of this Agreement are binding or effective unless included herein. This Agreement may be bled with the Register of Deeds of Winnebago County, Wisconsin. This Agreement may be used in litigation, mediation or arbitration and may be introduced into evidence by either party without objection in any action to enforce the terms herein. (f) No Waiver. The failure of any party to require strict performance with any provision of this Agreement does not constitute a waiver of the provision or of any of the parties' rights under this Agreement. Rights and obligations under this Agreement may only be waived or modified in writing. A writing waiving a right must be signed by an authorized representative of each party. Waiver of one right, or release of one obligation, does not constitute a waiver or release of any other right or obligation. (g) Performance Standard. This Agreement requires the parties to act or to refrain from acting on a number of matters. The parties hereby acknowledge that this Agreement imposes on them the mutual duty of good faith and fair dealing. In addition, whenever consent or approval is required by a party, the consent or approval shall not be unreasonably withheld. (h) No Third Party Beneficiary. This Agreement is intended to be solely between the signatories set forth on the following pages and the contemplated Sanitary District that may be created by the Town. Nothing in this Agreement grants any third party beneficiary rights to any other party. (i) Construction. This Agreement shall be liberally construed to accomplish its intended purposes. The parties acknowledge that the language contained in this Agreement is the product of various individuals representing the parties. Therefore, ambiguities shall not be construed against the drafter of this document. This Agreement will be construed to give a reasonable E:3 meaning to each of its provisions, and a construction that would render any provision meaningless, inexplicable, or mere surplusage must be avoided. (j) Non -Severability. The parties acknowledge that the provisions of this Agreement are interconnected. Therefore, if any provision of this Agreement is held invalid, illegal or unenforceable, the entire Agreement will be void if the parties are unable to replace the invalid provision through the process described below. If any provision of this Agreement is held invalid, illegal or unenforceable, the parties shall make a concerted, good faith effort to substitute a valid and enforceable provision as similar as possible to the provision at issue. If agreement is not reached within 90 days of the adverse determination, the parties shall submit the issue to mediation pursuant to the mediation provisions of Section 7, above. (k) Reservation of Rights. Nothing contained within this Agreement is intended to be a waiver or estoppel of the City's, the Town's, or the Sanitary District's or their insurers to rely upon limitations, defenses and immunities contained within Wisconsin Statutes, including but not limited to Sections 345.05 and 893.80 and any similar law. To the extent that indemnification is available and enforceable, the City, the Town, or the Sanitary District or their insurers shall not be liable in indemnity, contribution, or otherwise for an amount greater than the limits of liability of municipal claims established by Wisconsin law. However, nothing in this section shall be deemed a limitation on the City's ability to enforce any violation of its ordinances, resolutions, or administrative rules relating to water and wastewater services and to seek all available penalties and remedies including injunctive relief. The City shall not be required in such instance to provide statutory notice of injury or notice of claim prior to commencement of such enforcement actions. (1) Counterparts. This Agreement may be signed in one or more counterparts each of which is deemed an original. This Agreement may also be signed using pdf or facsimile signatures, which are deemed the same as an original signature. (m) Emergency / Force Majeure. The ability of a party to fulfill the terms of this Agreement may be impaired or restrictions on utility services may become necessary due to emergency situations, the need for water use limitations as provided within chapter 28 of the City's municipal code, or due to other events, acts or causes not within the control of the party whose A performance is interfered with. In such case the affected party shall notify the other party as soon as practicable and without unreasonable delay and if the emergency or force majeure shall require restrictions on the provision or use of the Utility Services, such restrictions shall be placed and done in a manner consistent with the restrictions placed on similarly situated customers of the utilities. Each party shall reasonably act to protect the assets and resources of the other party. [Left blank intentionally] 10 CITY OF OSHKOSH The undersigned officers of the City of Oshkosh have executed this Agreement pursuant to a duly - adopted resolution of the City Council dated the day of , 2020. By: City Manager By: City Clerk Date: Date: [Left blank intentionally] 11 TOWN OF OSHKOSH The undersigned officers of the Town of Oshkosh have executed this Agreement pursuant to a duly -adopted resolution of the Town Board dated the day of , 2020. By: Town Chairperson By: Town Clerk Date: Date: [Left blank intentionally] 12 TABLE OF CONTENTS — EXHIBITS Exhibit A — Legal description and aerial photo of Winnebago Area Exhibit B - Maps depicting the location of the existing water distribution system and the existing wastewater collection system Exhibit C - Description of the project encompassing the construction of a proposed new water distribution system replacement and a proposed wastewater collection system replacement ("Replacement Utilities") 13 EXHIBIT A Legal Description and Aerial Photo of Winnebago Area [See attached] 14 EXHIBIT B Maps Depicting the Location of the Existing Water Distribution System and the Existing Wastewater Collection System [See attached] 15 EXHIBIT C Description of the Project for the Replacement Utilities [See attached] 16 JUNE 3, 2020 RE: TOWN OF OSHKOSH A1910.5-20 TOWN OF OSHKOSH REVISED SANITARY DISTRICT DESCRIPTION (6-3-2020): BEGINNING AT THE EAST % CORNER OF SECTION 36, TOWNSHIP 19 NORTH, RANGE 16 EAST, TOWN OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN; THENCE SOUTH ALONG THE EAST LINE OF THE SOUTHEAST % OF SECTION 36 TO THE SOUTH RIGHT-OF-WAY LINE OF BUTLER AVENUE; THENCE EASTERLY ALONG SAID SOUTH RIGHT-OF-WAY LINE OF BUTLER AVENUE AND THE NORTH LINE OF LOT 1, CERTIFIED SURVEY MAP NUMBER 852 AS RECORDED IN WINNEBAGO COUNTY RECORDS TO THE EAST LINE OF SAID LOT 1; THENCE S14'02'28"W 102.00 FEET ALONG SAID EAST LINE; THENCE S06'54'53"E 42.13 FEET TO A POINT ON THE NORTH LINE OF LOT 3 OF C.S.M. 852; THENCE S89°30'48"W 62.18 FEET ALONG SAID NORTH LINE TO THE EAST LINE OF SAID SECTION 36; THENCE S00'17'28"W 380.47 FEET ALONG SAID EAST LINE TO A POINT ON THE NORTH LINE OF LOT 1 OF CERTIFIED SURVEY MAP 749 AS RECORDED IN WINNEBAGO COUNTY RECORDS; THENCE S76'09'32"E ALONG SAID NORTH LINE TO THE EAST LINE OF SAID LOT 1; THENCE S1400228"W, 199.00 FEET ALONG SAID EAST LINE; THENCE CONTINUING SOUTHERLY ALONG THE WEST RIGHT-OF-WAY LINE OF SHERMAN ROAD TO THE NORTH LINE OF THE SE % OF THE SE % OF SECTION 36; THENCE WEST ALONG SAID NORTH LINE TO A POINT THAT IS 17.77 RODS WEST OF THE SOUTHEAST CORNER OF THE NE % OF THE SE % OF SECTION 36; THENCE NORTHERLY AND PARALLEL TO THE EAST LINE OF THE NE % OF THE SE % OF SECTION 36, 203.5 FEET; THENCE EASTERLY AND PARALLEL TO THE SOUTH LINE OF THE NE % OF THE SE % OF SECTION 36, 193.7 FEET; THENCE NORTHERLY 100.0 FEET ALONG ALINE WHICH IS PARALLEL TO AND 100 FEET WEST OF THE EAST LINE OF THE NE % OF THESE OF SECTION 36; THENCE NORTH TO THE SOUTHEAST CORNER OF LOT 10, BLOCK 2, PICKETT'S PLAT AS RECORDED IN WINNEBAGO COUNTY RECORDS; THENCE NORTHERLY ALONG THE EAST LINE AND THE EAST LINE EXTENDED OF SAID LOT 10 TO THE NORTH LINE OF PICKETT AVENUE; THENCE EAST ALONG THE NORTH LINE OF PICKETT AVENUE TO THE SOUTHEAST CORNER OF LOT 8 OF PICKETT'S PLAT BLOCK ONE; THENCE NORTH 137.7 FEET ALONG THE EAST LINE OF SAID LOT 8 TO THE NORTHEAST CORNER OF SAID LOT 8; THENCE WEST 96 FEET ALONG THE NORTH LINE OF LOTS 8 AND 7 OF PICKETT'S PLAT BLOCK ONE TO THE NORTHWEST CORNER OF SAID LOT 7; THENCE SOUTH 137.7 FEET ALONG THE WEST LINE OF SAID LOT 7 TO THE NORTH LINE OF PICKETT AVENUE; THENCE WESTERLY ALONG SAID NORTH LINE TO THE NORTHEASTERLY LINE OF LANDS DESCRIBED IN DOCUMENT NO. 1062500; THENCE N34°03'07"W ALONG SAID NORTHEASTERLY LINE TO THE WEST LINE OF LOT 1, BLOCK 1, PICKETT'S PLAT; THENCE NORTHEASTERLY ALONG SAID WEST LINE AND THE WEST LINE OF LANDS DESCRIBED IN DOCUMENT NO. 1575209 TO THE NORTHWEST CORNER OF SAID DESCRIBED LANDS; THENCE EAST ALONG THE NORTH LINE OF SAID DESCRIBED LANDS TO THE WEST LINE OF LANDS DESCRIBED IN DOCUMENT NO. 1518698; THENCE NORTHEASTERLY ALONG SAID WEST LINE AND THE WEST LINE OF LANDS DESCRIBED IN DOCUMENT NO. 768615 TO THE SOUTH LINE OF BUTLER AVENUE; THENCE NORTHEASTERLY TO THE SOUTHWEST CORNER OF LOT 3, CERTIFIED SURVEY MAP NO. 5416 AS RECORDED IN VOLUME 1 OF CERTIFIED SURVEY MAPS ON PAGE 5416 AS DOCUMENT NO. 1295080; THENCE N21°41'36"E, 340.27 FEET ALONG THE WESTERLY LINE OF SAID LOT 3 AND THE WESTERLY LINE OF LOT 4 OF SAID CERTIFIED SURVEY MAP NO. 5416 TO THE NORTH LINE OF SAID LOT 4; THENCE N89037'13"E, 325.68 FEET ALONG SAID NORTH LINE TO THE EAST LINE OF THE NORTHEAST % OF SECTION 36; THENCE S00014'16"W, 320.00 FEET ALONG SAID EAST LINE TO THE POINT OF BEGINNING. CITY OF OSHKOSH / PRIVATE WATER MAIN ' 180493-01 180526 / 380525 CITY OF OSHKOSH 155408 PRIVATE SANITARY f SEWER / 155408-01 155408-02 PRIVATE TER MAIN / ] j'^V/rf re „. 80522 1 r, 180521 _._ _- / 1 180519 ' ) - - — J 1180516 180607-30 180522 0 TOWN OF sods lsosv soda SHKOSHI Isosr 407 182372 182313 �, N W E s 0 100 300 50 200 40( 6 PRIVATE— WATER MAIN PICKETT AVE. 1 o6 CITY OF OSHKOSH 180513' SANITARY DISTRICT i I BOUNDARY,TYP.� I 1 CITY OF OSHKOSH 180607-0302 / ou a7 TH on 1$$401 80513-01 PRIVATE WATER MAIN 180510 , PRIVATE SANITARY SEWER I 180509 I 180508-7:7 I 155401-0200 General Engineering Company P.O. Box 340 • 916 Silver Lake Dr. • Portage, WI 53901 608-742-2169 (Offce) , 608-742-2592 (Fax) www. gen eralen gin ee n n g.n et Thbdo.. tb s,.,ade,aai o1 PmPde 11f.1-1o1ofGe ,blE,g,--gCo ,P Need,end,Abd.­,t.o.d,—f.—db—,11mde, .d...dd-b-d--d-1—d ,,thr,wn Parce Pr­Tef1b1ya h....ddvGe ,bl E,gm,,,g_P_ WINNEBAGO SANITARY DISTRICT TOWN OF OSHKOSH UTILITY MAP TOWN OF OSHKOSH WINNEBAGO COUNTY, WI DRAWN BY SRR REVIEWED BY JAF ISSUE DATE JUNE 2020 GEC FILE NO. 2-0318-150B SHEET NO. Exhibit B PRIVATE SANITARY— / SEWER / / Q / PRIVATE WATER MAIN ' 180493-01 180526 / 380525 CITY OF OSHKOSH 155408 PRIVATE SANITARY f SEWER / 155408-01 155408-02 PRIVATE TER MAIN / ] j'^V/rf re „. 80522 1 r, 180521 _._ _- / 1 180519 ' ) - - — J 1180516 180607-30 180522 0 TOWN OF sods lsosv soda SHKOSHI Isosr 407 182372 182313 �, N W E s 0 100 300 50 200 40( 6 PRIVATE— WATER MAIN PICKETT AVE. 1 o6 CITY OF OSHKOSH 180513' SANITARY DISTRICT i I BOUNDARY,TYP.� I 1 CITY OF OSHKOSH 180607-0302 / ou a7 TH on 1$$401 80513-01 PRIVATE WATER MAIN 180510 , PRIVATE SANITARY SEWER I 180509 I 180508-7:7 I 155401-0200 General Engineering Company P.O. Box 340 • 916 Silver Lake Dr. • Portage, WI 53901 608-742-2169 (Offce) , 608-742-2592 (Fax) www. gen eralen gin ee n n g.n et Thbdo.. tb s,.,ade,aai o1 PmPde 11f.1-1o1ofGe ,blE,g,--gCo ,P Need,end,Abd.­,t.o.d,—f.—db—,11mde, .d...dd-b-d--d-1—d ,,thr,wn Parce Pr­Tef1b1ya h....ddvGe ,bl E,gm,,,g_P_ WINNEBAGO SANITARY DISTRICT TOWN OF OSHKOSH UTILITY MAP TOWN OF OSHKOSH WINNEBAGO COUNTY, WI DRAWN BY SRR REVIEWED BY JAF ISSUE DATE JUNE 2020 GEC FILE NO. 2-0318-150B SHEET NO. Exhibit B / / PRIVATE WATER MAIN ' 180493-01 180526 / 380525 CITY OF OSHKOSH 155408 PRIVATE SANITARY f SEWER / 155408-01 155408-02 PRIVATE TER MAIN / ] j'^V/rf re „. 80522 1 r, 180521 _._ _- / 1 180519 ' ) - - — J 1180516 180607-30 180522 0 TOWN OF sods lsosv soda SHKOSHI Isosr 407 182372 182313 �, N W E s 0 100 300 50 200 40( 6 PRIVATE— WATER MAIN PICKETT AVE. 1 o6 CITY OF OSHKOSH 180513' SANITARY DISTRICT i I BOUNDARY,TYP.� I 1 CITY OF OSHKOSH 180607-0302 / ou a7 TH on 1$$401 80513-01 PRIVATE WATER MAIN 180510 , PRIVATE SANITARY SEWER I 180509 I 180508-7:7 I 155401-0200 General Engineering Company P.O. Box 340 • 916 Silver Lake Dr. • Portage, WI 53901 608-742-2169 (Offce) , 608-742-2592 (Fax) www. gen eralen gin ee n n g.n et Thbdo.. tb s,.,ade,aai o1 PmPde 11f.1-1o1ofGe ,blE,g,--gCo ,P Need,end,Abd.­,t.o.d,—f.—db—,11mde, .d...dd-b-d--d-1—d ,,thr,wn Parce Pr­Tef1b1ya h....ddvGe ,bl E,gm,,,g_P_ WINNEBAGO SANITARY DISTRICT TOWN OF OSHKOSH UTILITY MAP TOWN OF OSHKOSH WINNEBAGO COUNTY, WI DRAWN BY SRR REVIEWED BY JAF ISSUE DATE JUNE 2020 GEC FILE NO. 2-0318-150B SHEET NO. Exhibit B 741, MT TP U 1. Project Background and Existing Conditions: The Winnebago area currently receives sewer and water services from the Wisconsin Department of Health Services (DHS) through the Winnebago Mental Health Institute (WMHI) property. According to available information, the original 1930s and 1940s water and sewer system that serves the Winnebago area has had no significant repairs or upgrades since the initial installation. Presently, the City of Oshkosh supplies water supply to WMHI, which then feeds Winnebago. Likewise, the sewage flows ultimately back to the City's treatment facilities. WMHI bills the Winnebago area residents for sewer and water. In recent years, DHS worked to remove itself from the ownership and operation of utility services in the Winnebago area. DHS claimed that it isn't set up to be a utility provider and this service is better handled by a Town Sanitary District or the City's Public Works Department. Letters sent by DHS to residents in 2014 and 2017 indicated that water and sewer services would be terminated. Discussions between the Town and the State Occurred to determine the best solution without terminating water and sewer service. The major hurdle to this transfer of ownership is the aging infrastructure and the significant capital required to bring the sewer and water systerns up to a level that could be affordably managed and maintained. The recently completed and adopted Town feasibility study found that the best solution for ownership of the infrastructure is a new sanitary district for the Winnebago area, which is in the process of being created. As of the Spring of 2019, DHS representatives stated that in order to transition ownership of the Winnebago area utilities to the new Winnebago Sanitary District (WSD), funding would be provided to the Town to upgrade the failing infrastructure through the CDBG Special Projects program. 2. Specific Details of Existing Utilities and Infrastructure: The current infrastructure is old and failing and in need of repair or replacement. The original sewer and water systems were installed by the State in the 1930s and 1940s. The sewer mains and laterals have been noted as clay and there have been issues of cracked, leaking and plugged lines. The age and condition of both systems justify the replacement of the sewer/water mains and laterals. Also, it is likely that the water services contain lead and/or galvanized pipe. Replacement of the private services will be a non-CDBG funded option of the project. Infrastructure improvements are estimated to cost over $1 million. The Winnebago area presently includes 21 single family homes, 1 post office and 2 apartment complexes (32 -unit and 12 -unit). This area involves about 103 residents, 62 of which are low -to -moderate income individuals. The Town of Oshkosh (and the WSD) intends to replace the existing public facilities that serve the Winnebago area residents including sewer, water, drainage and street improvements in accordance with plans and specifications developed by the Engineer. The Winnebago Area Utilities and Infrastructure Rehabilitation Project is located in the Town of Oshkosh, Winnebago County, Wisconsin. The utilities and infrastructure on Butler Avenue and portions of Sherman Road will be rehabilitated. Specifically, about 700 feet of 8" sewer main and 780 feet of 6" water main and appurtenances will be replaced on Butler. About 1200 feet of sewer and water main and appurtenances will be replaced on the west side of Sherman Road. The street sections along the utilities rehabilitation project route will be replaced as well. The proposed WSD Utilities and Infrastructure Rehabilitation project will reduce or eliminate sewer/basement backups, reduce infiltration and inflow into the system, and provide more reliable service with new mains/laterals. Oshkosh's Wastewater Treatment Plant will save energy, maintenance operations, and chemical costs from the sewage flow reduction. The result will benefit the area as a whole but Will Most favorably impact the low- and moderate -income families by keeping their user rates as affordable as possible. New water main and hydrants will improve area's firefighting capability. New water rnain will provide better reliability and flow to the Winnebago customers.